By the time you read this, I should be in Heaven. This is not to say that I expect to be dead. Were that the case, the destination is far from certain. In my case, I suspect sweet death to be followed by a locale with enormous and eternal heating bills.
No, I expect to be in Wales, attending one of my all-time favorite events: The Hay-on-Wye Festival.
The festival has been around for several decades. Hay-on-Wye has been around forever. Indeed, the castle at the town’s center is crumbling and in disrepair. But this does not stop the structure from being used. Richard Booth sells used books out of the usable portions of the castle. You can find some real bargains there if you are willing to overlook the cobwebs.
Booth is my kind of guy, an eccentric who in the 1970s declared the town independent of Great Britain. Of course, this declaration of sovereignty did not go far. Sure, he and some buddies floated a boat up and down the Wye River, and called it a navy. But few others were impressed.
Hay-on-Wye is not a separate nation. But the town is a tiny island of sanity in a world gone mad. It is a book lover’s paradise. Although the town has but 1,500 full-time inhabitants, it has dozens of used bookstores. You can spend days browsing aisles of old books on every conceivable topic. I am still smarting about having left behind an annotated bibliography of works on Anthony Trollope two years ago. I’ll be heading to that shop straightaway to see whether the poor volume has languished there, rejected and unloved by hunting eyes and hungry minds.
My favorite shop is Addyman’s Annex. I once found a nice copy of James Caufield’s The High Court of Justice; Comprising Memoirs of The Principal Persons Who Sat in Judgment on King Charles the First, and Signed His Death-Warrant, ... The work was written in 1820. It illustrates one of history’s great lessons: Payback is a, well, brother-shucker. Once Charles II took the throne he saw to it that each and every man who signed the death warrant as to Charles I in 1649 was himself honored with an appointment on the gallows.
The Hay-on-Wye Festival is not a celebration of old books, however. And it is more than a mere celebration of books, although authors from around the world flock there to give readings. The festival is simple joy. Singers, dancers, poets, artists from the far-flung corners of the world flock to the tiny town. Nearly 100,000 people will tromp through the almost inevitably muddy fair grounds.
Where do all these folks stay? One year, I slept in an attic a couple miles from town. This year, I am better organized. I have a bedroom. And it isn’t just any room. I have the master suite in a medieval castle a few miles from town. The owners put it up for rent. I am not sure where they will be staying.
So while you sit behind a desk wondering why a legal newspaper would print this sort of column, I may well be walking from my castle to the fair. The route takes me along country lanes, and hedgerows tight on the road. I’ll be listening to sheep munch turf, from time to time bleating at one another in a language only they, and border collies, truly know.
Once at the fair grounds, I will have a choice among hundreds of events to attend. A make-shift bookshop on the premises will offer autographed copies of works by the speakers. I still treasure a signed copy of a murder mystery I scored some time ago by a young author who has yet to find success on this side of the Atlantic.
And when the fair proves overwhelming, I’ll walk into town to browse in bookstores. Sure, the food in Wales leaves much to be desired, but even there, there is one spot in Hay-on-Wye that does wonders with guinea fowl. If I lose a few pounds all the better.
Now tell me, if you well and truly can, what more can a person want? Heaven, I say. And I will be there for ten days.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, May 20, 2009
Monday, May 18, 2009
Who Were The Justices? James Wilson: 1789 to 1798
I was just taken to task in a private email over the piece I wrote on Harold Koh. Once again, the reader reminded me, I let my own sense of self-righteous hurt blossom into an unthinking attack on a good man. Koh deserves a reassessment, I am told. He is an activist and advocate with a heart.
I own the characterization of me. For whatever reasons, I lack the grace to leave a difficult past behind. Rather than make amends, I tear at things. The result is often not pretty. But was I wrong about Koh?
Do we need a trial lawyer on the high court? We can live without one, that is certain. But I would like to see someone who's bled, either in the trenches, or in real life, on the Court. Is asking for one such person out of nine too much? Koh comes from a privileged background, and has glided through a professional life that looks more like a fiction than the lives most folks lead.
What sorts of folks have become justices?, I wondered the other day. I've begun making notes on the brief biographies presented in The Oxford Companion to the Supreme Court of the United States. Starting at the beginning, I looked at the biography of the first person ever to serve on the Court, James Wilson.
Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.
He was born in Scotland in 1742 and began to read law with John Dickinson in 1765 in Philadelphia. In 1767, he opened a practice in western Pennsylvania. From an early age, he wrote extensively about government, and aspired to high political office. In 1775 he was elected to the Second Continental Congress; he was not at early supported of independence, but did sign the Declaration of Independence. He played an important role in the Convention that produced the federal constitution.
(Contemporary analogue: Top notch education as a lawyer and rapid rise through public service. The extent and nature of his practice is hard to discern in the brief biography.)
But here is the fascinating part. Wilson was appointed to the Court in 1789 as an associate justice. Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. "Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina." A justice in debtor's prison?
Wilson sat on the Court until his death in 1798, according to the Oxford Companion. Is it true that a sitting justice of the Supreme Court was actually imprisoned because of debt? And did he really go into hiding to avoid debt while a justice? Now here is a justice rubbed raw by experience, no matter how noble the early training.
Wilson's writing on government and law were staples of early American education. But it turns out he is far more than the some of these accomplishments. I'm looking for a copy Charles Paige Smith's biography of Wilson. James Wilson: Founding Father, 1742-1798 has long been out of print, but it tells a story I want to read.
I own the characterization of me. For whatever reasons, I lack the grace to leave a difficult past behind. Rather than make amends, I tear at things. The result is often not pretty. But was I wrong about Koh?
Do we need a trial lawyer on the high court? We can live without one, that is certain. But I would like to see someone who's bled, either in the trenches, or in real life, on the Court. Is asking for one such person out of nine too much? Koh comes from a privileged background, and has glided through a professional life that looks more like a fiction than the lives most folks lead.
What sorts of folks have become justices?, I wondered the other day. I've begun making notes on the brief biographies presented in The Oxford Companion to the Supreme Court of the United States. Starting at the beginning, I looked at the biography of the first person ever to serve on the Court, James Wilson.
Wilson was appointed by George Washington along with five others on September 24, 1789. He was sworn in on October 5, 1789, thus becoming the first Justice on the Supreme Court.
He was born in Scotland in 1742 and began to read law with John Dickinson in 1765 in Philadelphia. In 1767, he opened a practice in western Pennsylvania. From an early age, he wrote extensively about government, and aspired to high political office. In 1775 he was elected to the Second Continental Congress; he was not at early supported of independence, but did sign the Declaration of Independence. He played an important role in the Convention that produced the federal constitution.
(Contemporary analogue: Top notch education as a lawyer and rapid rise through public service. The extent and nature of his practice is hard to discern in the brief biography.)
But here is the fascinating part. Wilson was appointed to the Court in 1789 as an associate justice. Despite an ambition to serve as chief, he was passed over for the position thrice: in 1789, 1795 and again in 1796. "Increasingly during the 1790s Wilson became overextended in his investments and overwhelmed by financial distress. Twice he was jailed for debt. Eventually, to escape creditors he went into hiding in North Carolina." A justice in debtor's prison?
Wilson sat on the Court until his death in 1798, according to the Oxford Companion. Is it true that a sitting justice of the Supreme Court was actually imprisoned because of debt? And did he really go into hiding to avoid debt while a justice? Now here is a justice rubbed raw by experience, no matter how noble the early training.
Wilson's writing on government and law were staples of early American education. But it turns out he is far more than the some of these accomplishments. I'm looking for a copy Charles Paige Smith's biography of Wilson. James Wilson: Founding Father, 1742-1798 has long been out of print, but it tells a story I want to read.
LaPlante's Salem Witch Judge
Twenty people were put to death during the Salem witchcraft trials in 1692, one of them pressed to death by heavy stones placed atop him until his ribs snapped and he suffocated. He just wouldn't enter a plea, even of not guilty to the charges. So long as he held his silence, authorities would not be able to seize his land or estates. He was, as the Puritans might have said, silent unto death.
Salem is synonymous with mass hsyteria. How is it that authorities put a score of people to death based on evidence that makes Halloween look like a national holiday?
Eve LaPlante's, Salem Witch Judge: The Life and Repentance of Samuel Sewall (Harper Collins, 2008), provides answers.
Sewall was one of the judges who sentenced the convicted witches to death. He was also a lifelong diarist. Sewall, a distant relative of Sewall's, recreates Sewall's world. We see man not so much intoxicated by God, but living in the daily dread that he might not be among the elect. Damnation was ever present in Sewall's mind. Every sign, every act, was a token reflecting the hand of an omnipotent God. In his diary, Sewall reflects what I call the paradox of Puritanism: he writes intimately of his longing for God's approval, writing directly to the God he presumes can know his thoughts and innermost longings; yet this intimacy reflects the terror that God will reject the writer. I believe, Sewall writes, help thou my unbelief. The diary entries are really entreaties to a God that is neither seen nor heard but nonetheless believed to be ever present.
In the early 1690s, Boston and its environs were periodically swept by illness. Quarantines were not uncommon. Hardy Puritans who believed they had been transplanted here to establish a city on a hill, were left to wonder about why illness came from God to rebuke them. And so, too, with the French-Indian wars. Why did God permit Catholics and pagans to decimate God-fearing villages, burning houses, killing and capturing men, women and children? And what of infant death? As Sewall watched one child after another or his die shortly after childbirth, he felt chastened. Evil was afoot, he knew it. In the name of God, something must be done.
Fenster does a good job capturing the grim contours of Sewall's life and the broad pressures to do something, almost anything, to justify the harsh ways of God to men who put their faith in the unseen.
The witchcraft trials ended almost abruptly as they began. The evidence against the so-called witches was, you see, largely "spectral." What this meant is that folks were convicted based not on what they were themselves observed to have done, but based on what the Devil did when assuming a form similar to theirs. Often, witches were identified by hysterical young women, or folks who bore quotidian grudges against them. Sewall lacked legal training but nonetheless knew that spectral evidence had no foundation in law.
Years after the trials and executions, Sewall publicly repented of his role in the trials. He stood in an open church in the pew belonging to his family, and asked the forgiveness of God and his community. He was, apparently, the only judge to do so. Others went to the grave no doubt believing that they had battled the Prince of Darkness on this new frontier.
Fenster's book is well-researched and well-written. Her bibliography has me hungering to learn more. What's more, the book chastens. We may not be Puritans any longer, but I suspect we just as susceptible to mass illusion. Lawyers will appreciate anew the significance of the law of evidence. We really must insist that when a client's liberty and life is on the line, the state acts based on competent evidence. Fear and terror can be lethal.
Salem is synonymous with mass hsyteria. How is it that authorities put a score of people to death based on evidence that makes Halloween look like a national holiday?
Eve LaPlante's, Salem Witch Judge: The Life and Repentance of Samuel Sewall (Harper Collins, 2008), provides answers.
Sewall was one of the judges who sentenced the convicted witches to death. He was also a lifelong diarist. Sewall, a distant relative of Sewall's, recreates Sewall's world. We see man not so much intoxicated by God, but living in the daily dread that he might not be among the elect. Damnation was ever present in Sewall's mind. Every sign, every act, was a token reflecting the hand of an omnipotent God. In his diary, Sewall reflects what I call the paradox of Puritanism: he writes intimately of his longing for God's approval, writing directly to the God he presumes can know his thoughts and innermost longings; yet this intimacy reflects the terror that God will reject the writer. I believe, Sewall writes, help thou my unbelief. The diary entries are really entreaties to a God that is neither seen nor heard but nonetheless believed to be ever present.
In the early 1690s, Boston and its environs were periodically swept by illness. Quarantines were not uncommon. Hardy Puritans who believed they had been transplanted here to establish a city on a hill, were left to wonder about why illness came from God to rebuke them. And so, too, with the French-Indian wars. Why did God permit Catholics and pagans to decimate God-fearing villages, burning houses, killing and capturing men, women and children? And what of infant death? As Sewall watched one child after another or his die shortly after childbirth, he felt chastened. Evil was afoot, he knew it. In the name of God, something must be done.
Fenster does a good job capturing the grim contours of Sewall's life and the broad pressures to do something, almost anything, to justify the harsh ways of God to men who put their faith in the unseen.
The witchcraft trials ended almost abruptly as they began. The evidence against the so-called witches was, you see, largely "spectral." What this meant is that folks were convicted based not on what they were themselves observed to have done, but based on what the Devil did when assuming a form similar to theirs. Often, witches were identified by hysterical young women, or folks who bore quotidian grudges against them. Sewall lacked legal training but nonetheless knew that spectral evidence had no foundation in law.
Years after the trials and executions, Sewall publicly repented of his role in the trials. He stood in an open church in the pew belonging to his family, and asked the forgiveness of God and his community. He was, apparently, the only judge to do so. Others went to the grave no doubt believing that they had battled the Prince of Darkness on this new frontier.
Fenster's book is well-researched and well-written. Her bibliography has me hungering to learn more. What's more, the book chastens. We may not be Puritans any longer, but I suspect we just as susceptible to mass illusion. Lawyers will appreciate anew the significance of the law of evidence. We really must insist that when a client's liberty and life is on the line, the state acts based on competent evidence. Fear and terror can be lethal.
Thursday, May 14, 2009
Hey, Hey, Ho, Ho; Why The Fuss About Harold Koh?
I think my wife has a thing for Harold Koh. She’s not alone. One of our neighbors also glows at the mere mention of the name. They were talking about Koh the other day, and I had to leave the room. What’s he got that makes groupies of women in late middle age?
Koh was just confirmed by the Senate Judiciary Committee to serve as the top legal advisor to the State Department. Confirmation is likely but not a sure thing. Up from the swamps of jingoism rises gaseous noise that Koh is too much of a "transnationalist" to serve the national interest. Oh, for the good old days of William Jennings Bryan at State. Now there was a man who knew our place in the world and the cosmos.
I was prepared to overlook this glow about Koh among those near and dear to me. I understand its source. Koh’s kids went to school with our kids. He is a good dad, and, therefore, by extension, a good human being. He is reportedly considerate in little things: recalling a name, making time for the exchange of the small courtesies that make life sweet.
But then I started to see Koh’s name on the shortlist of those in the running for a seat on the United States Supreme Court.
Koh does glow, all right. But is he just another "cookie-cutter" candidate?
A friend turned me on to Chris Matthews the other day. I’d only seen him once or twice before. He struck me as all bluster, another raging nitwit surfing in the wake of Rush Limbaugh. You know the type, fuel up on testosterone in the morning and then spend the day pointing and shooting at every red herring swimming by. But Matthews is no right-wing nutcase. No, he’s a liberal nutcase. Okay, okay. Minds across the ideological spectrum come in all forms. Some are supple and graceful; some come in the Matthews-Limbaugh form.
Matthews did coin a nice expression amid his screeching. He referred to a potential nominee for justice as a cookie-cutter candidate, no doubt referring to her race and ethnicity. Koh is exotic by the standards of mainstream. Isn’t it time for an Asian-American justice?
But what of the real cookie-cutter that molds any candidate for justice, regardless or race, ethnicity or gender? If you want to rise to the top of the law’s pyramid, it seems as though you must climb the right steps: Ivy undergraduate degree; law school at Harvard or Yale; perhaps a finishing stint at Oxford or Cambridge; clerkship to a federal judge, preferably a Supreme Court justice; and then time spent in the silver-lined trenches of academia, the government or a big firm. Only once a candidate has been homogenized on this conveyor belt and certified as grade A white shoe does a name emerge as fit to sit on the nation’s high court. Koh has been so certified; why, he’s even served as Dean of the Yale Law School.
What a scam.
I’ve only met a few of these masters of law’s universe. Yet I spend a part of almost every working day in a courtroom representing the folks who serve as the "fact patterns" for the law’s elite. I’ve never met the likes of Koh in the well of a court. For the life of me, I cannot see why a life spend atop the law’s pyramid makes one fit, or even capable, of seeing what goes on in the shadows most folks live in day by day.
I favor President Obama’s call for a pragmatic jurist on the court. The law’s ideologues are tedious boors; we’ve long since buried Robert Bork. The specter of revenging his death as a potential justice is chilling. And empathy is a good thing, too. But I don’t want fellow feeling laced with paternalism.
Koh’s parents may well have come here to flee persecution. But once they arrived, they settled into comfortable lives as academics. Koh grew in a grove far more sheltered than anything most of us can imagine.
My most vivid memory of Koh is not a good one. I have twice written to him requesting guidance as a practitioner. Where can I learn more about international law, I asked? Both missives went unanswered. I live hidden in the law’s shadows; so hidden that my requests for assistance are mere static. Like most Americans, I was not assembled at the right status factory. I just can’t glow about a Koh most of us will never know.
Reprinted courtesy of the Connecticut Law Tribune.
Koh was just confirmed by the Senate Judiciary Committee to serve as the top legal advisor to the State Department. Confirmation is likely but not a sure thing. Up from the swamps of jingoism rises gaseous noise that Koh is too much of a "transnationalist" to serve the national interest. Oh, for the good old days of William Jennings Bryan at State. Now there was a man who knew our place in the world and the cosmos.
I was prepared to overlook this glow about Koh among those near and dear to me. I understand its source. Koh’s kids went to school with our kids. He is a good dad, and, therefore, by extension, a good human being. He is reportedly considerate in little things: recalling a name, making time for the exchange of the small courtesies that make life sweet.
But then I started to see Koh’s name on the shortlist of those in the running for a seat on the United States Supreme Court.
Koh does glow, all right. But is he just another "cookie-cutter" candidate?
A friend turned me on to Chris Matthews the other day. I’d only seen him once or twice before. He struck me as all bluster, another raging nitwit surfing in the wake of Rush Limbaugh. You know the type, fuel up on testosterone in the morning and then spend the day pointing and shooting at every red herring swimming by. But Matthews is no right-wing nutcase. No, he’s a liberal nutcase. Okay, okay. Minds across the ideological spectrum come in all forms. Some are supple and graceful; some come in the Matthews-Limbaugh form.
Matthews did coin a nice expression amid his screeching. He referred to a potential nominee for justice as a cookie-cutter candidate, no doubt referring to her race and ethnicity. Koh is exotic by the standards of mainstream. Isn’t it time for an Asian-American justice?
But what of the real cookie-cutter that molds any candidate for justice, regardless or race, ethnicity or gender? If you want to rise to the top of the law’s pyramid, it seems as though you must climb the right steps: Ivy undergraduate degree; law school at Harvard or Yale; perhaps a finishing stint at Oxford or Cambridge; clerkship to a federal judge, preferably a Supreme Court justice; and then time spent in the silver-lined trenches of academia, the government or a big firm. Only once a candidate has been homogenized on this conveyor belt and certified as grade A white shoe does a name emerge as fit to sit on the nation’s high court. Koh has been so certified; why, he’s even served as Dean of the Yale Law School.
What a scam.
I’ve only met a few of these masters of law’s universe. Yet I spend a part of almost every working day in a courtroom representing the folks who serve as the "fact patterns" for the law’s elite. I’ve never met the likes of Koh in the well of a court. For the life of me, I cannot see why a life spend atop the law’s pyramid makes one fit, or even capable, of seeing what goes on in the shadows most folks live in day by day.
I favor President Obama’s call for a pragmatic jurist on the court. The law’s ideologues are tedious boors; we’ve long since buried Robert Bork. The specter of revenging his death as a potential justice is chilling. And empathy is a good thing, too. But I don’t want fellow feeling laced with paternalism.
Koh’s parents may well have come here to flee persecution. But once they arrived, they settled into comfortable lives as academics. Koh grew in a grove far more sheltered than anything most of us can imagine.
My most vivid memory of Koh is not a good one. I have twice written to him requesting guidance as a practitioner. Where can I learn more about international law, I asked? Both missives went unanswered. I live hidden in the law’s shadows; so hidden that my requests for assistance are mere static. Like most Americans, I was not assembled at the right status factory. I just can’t glow about a Koh most of us will never know.
Reprinted courtesy of the Connecticut Law Tribune.
Tuesday, May 12, 2009
Fenster's, The Case of Abraham Lincoln
A long time ago, a client and a good friend gave me a painting: It was a Norman Rockwell of a young man reading the law, apparently on break from the more pressing concerns of earning a living. I think of Abraham Lincoln.
What sort of lawyer was Lincoln?
Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007), focuses on the year 1856. Lincoln the circuit riding litigator struggles at the creation of the Republican Party and is a go-to lawyer in Central Illinois. How did he manage to play both roles? Does this year shed light on how he became the stuff of legend?
Sadly, Fenster's book disappoints.
I confess that the title grabbed me. Lincoln, adultery, murder? I am no scholar as regards Lincoln, so I wondered what possibly I could have missed. This is pretty juicy stuff.
As it turns out, Lincoln played a brief but decisive role in a spectacular murder trial in 1856 in Springfield, Illinois, involving the murder of George Anderson, a man suspected of being poisoned and then bludgeoned to death by his wife and her lover. (I refuse to spoil the book by relaying either the role Lincoln played or the outcome of the trial.) Fenster deflty moves from examination of the crime to Lincoln's emerging role as political leader. The book is, for the most part, well written and researched.
However, in the end, it seems as though the two tales never really meet in a way that sheds much light on Lincoln's character. I am left with the sense that the author set out to write a book on Lincoln, couldn't decided between one topic or another, and tried nearly in vain to stitch together one compelling narrative. Alas, the narrative does not compel.
This is not to say the book is without redeeming features. I enjoyed glimpses of Lincoln's life as a lawyer. I loved the insight into the day-to-day practice of law in the 1850s. And I envied the easy days of the law, when a lawyer could meet a client one evening, and try his case the very next day. Most facts really are that simple. Only in our day and age can we have a surfeit of lawyers and at the same time complain about the vanishing trial.
"His style," Fenster writes, "in trial was to allow the prosecution to makes its best case; sometimes, he even helped to delineate the state's case. When he felt that everyone in court understood the opposing argument clearly, he could all the more easily break it apart and dispense with it." Well, that's not much of an insight. Indeed, it is so conclusory as to approach meaninglessness. Even so, this work whetted my appetite to learn more about Lincoln the lawyer, a topic about which I know very, very little.
I will be forever grateful to Fenster for the second sentence of the book's acknowledgements. She cites a 3-volume CD set entitled The Law Practice of Abraham Lincoln: Complete Documentary Edition. This work apsired to collect every document on every case Lincoln worked on during his career as a lawyer. This set is not available in a Second Edition selling for $500. http://www.papersofabrahamlincoln.org/complete_edition.htm
Much though there is fault to find with this book, I am grateful to Ms. Fenster for shedding new light on a familiar figure.
What sort of lawyer was Lincoln?
Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007), focuses on the year 1856. Lincoln the circuit riding litigator struggles at the creation of the Republican Party and is a go-to lawyer in Central Illinois. How did he manage to play both roles? Does this year shed light on how he became the stuff of legend?
Sadly, Fenster's book disappoints.
I confess that the title grabbed me. Lincoln, adultery, murder? I am no scholar as regards Lincoln, so I wondered what possibly I could have missed. This is pretty juicy stuff.
As it turns out, Lincoln played a brief but decisive role in a spectacular murder trial in 1856 in Springfield, Illinois, involving the murder of George Anderson, a man suspected of being poisoned and then bludgeoned to death by his wife and her lover. (I refuse to spoil the book by relaying either the role Lincoln played or the outcome of the trial.) Fenster deflty moves from examination of the crime to Lincoln's emerging role as political leader. The book is, for the most part, well written and researched.
However, in the end, it seems as though the two tales never really meet in a way that sheds much light on Lincoln's character. I am left with the sense that the author set out to write a book on Lincoln, couldn't decided between one topic or another, and tried nearly in vain to stitch together one compelling narrative. Alas, the narrative does not compel.
This is not to say the book is without redeeming features. I enjoyed glimpses of Lincoln's life as a lawyer. I loved the insight into the day-to-day practice of law in the 1850s. And I envied the easy days of the law, when a lawyer could meet a client one evening, and try his case the very next day. Most facts really are that simple. Only in our day and age can we have a surfeit of lawyers and at the same time complain about the vanishing trial.
"His style," Fenster writes, "in trial was to allow the prosecution to makes its best case; sometimes, he even helped to delineate the state's case. When he felt that everyone in court understood the opposing argument clearly, he could all the more easily break it apart and dispense with it." Well, that's not much of an insight. Indeed, it is so conclusory as to approach meaninglessness. Even so, this work whetted my appetite to learn more about Lincoln the lawyer, a topic about which I know very, very little.
I will be forever grateful to Fenster for the second sentence of the book's acknowledgements. She cites a 3-volume CD set entitled The Law Practice of Abraham Lincoln: Complete Documentary Edition. This work apsired to collect every document on every case Lincoln worked on during his career as a lawyer. This set is not available in a Second Edition selling for $500. http://www.papersofabrahamlincoln.org/complete_edition.htm
Much though there is fault to find with this book, I am grateful to Ms. Fenster for shedding new light on a familiar figure.
Monday, May 11, 2009
Picking Cotton: A Story of Redemption
News of folks exonerated by DNA evidence is by now commonplace, so another book on the topic needs to do more than reveal the twists and turns of a life redeemed by good lawyering and good science. Picking Cotton: Our Memoir of Injustice and Redemption, delivers, sort of.
This is a team written book. The two protagonists, Jennifer Thompson-Cannino and Ronald Cotton, needed help putting their drama into words. They selected a young writer named Erin Torneo. The result is a book in which everyone manages to sound the same. That would be fatal in a piece of fiction. But as this book recounts sorrowful and hopeful facts, the fault can be forgiven. But reader beware: This is a long, long way from Truman Capote.
Ms. Thompson-Cannino was sexually assaulted at knife point while in college. As the assailant lingered, she made her best efforts to commit to memory her attacker's features. If she survived the ordeal, she wanted to be a good witness. And so she was. She first worked with sketch artists to compile a composite picture; then she identified Mr. Cotton in a lineup. First one trial, and then another, led to the conviction of Mr. Cotton, who was sentenced to life plus. She was certain he was the rapist. Dead certain.
But Mr. Cotton was innocent, or so he kept telling his lawyers. Some lawyers were more responsive than others, and if for no other reason than to see how our incarcerated clients percieve us, I recommend this book to practicing criminal defense lawyers. I know I am guilty of so focusing on the issues that I forget about the client. Mr. Cotton lavishes praise on the men who sent him detailed updates from time to time.
In the end, DNA and a confession by another exonerated Mr. Cotton, and he was set free after serving 11 years. Important as this part of the story is, it is merely the prelude to what is truly extraordinary about Ms. Thompson-Cannino and Mr. Cotton. You see, they became fast friends. Mr. Cotton found it far easier to forgive Ms. Thompson-Cannino for her false identification that she found it to forgive herself. His model of grace inspired her, and, in effect, redeemed her from a lifetime of bitterness.
There is a morality play buried not so far beneath the surface. Mr. Thompson-Cannino is offered the gift of grace by a man she horribly wronged. She accepts the gift and blossoms into a lovely and giving human being. When she tries to give this gift to the man who, in fact, assaulted her, he refuses to accept it, dying a silent death of cancer behind bars.
I wish a better writer had sought to help the protagonists to tell this tale. There is epic power in their story, but Picking Cotton, for all its fine points, reads as though it were written for USA Today. I want to know more about these people. This book scarecly scratched the surface.
This is a team written book. The two protagonists, Jennifer Thompson-Cannino and Ronald Cotton, needed help putting their drama into words. They selected a young writer named Erin Torneo. The result is a book in which everyone manages to sound the same. That would be fatal in a piece of fiction. But as this book recounts sorrowful and hopeful facts, the fault can be forgiven. But reader beware: This is a long, long way from Truman Capote.
Ms. Thompson-Cannino was sexually assaulted at knife point while in college. As the assailant lingered, she made her best efforts to commit to memory her attacker's features. If she survived the ordeal, she wanted to be a good witness. And so she was. She first worked with sketch artists to compile a composite picture; then she identified Mr. Cotton in a lineup. First one trial, and then another, led to the conviction of Mr. Cotton, who was sentenced to life plus. She was certain he was the rapist. Dead certain.
But Mr. Cotton was innocent, or so he kept telling his lawyers. Some lawyers were more responsive than others, and if for no other reason than to see how our incarcerated clients percieve us, I recommend this book to practicing criminal defense lawyers. I know I am guilty of so focusing on the issues that I forget about the client. Mr. Cotton lavishes praise on the men who sent him detailed updates from time to time.
In the end, DNA and a confession by another exonerated Mr. Cotton, and he was set free after serving 11 years. Important as this part of the story is, it is merely the prelude to what is truly extraordinary about Ms. Thompson-Cannino and Mr. Cotton. You see, they became fast friends. Mr. Cotton found it far easier to forgive Ms. Thompson-Cannino for her false identification that she found it to forgive herself. His model of grace inspired her, and, in effect, redeemed her from a lifetime of bitterness.
There is a morality play buried not so far beneath the surface. Mr. Thompson-Cannino is offered the gift of grace by a man she horribly wronged. She accepts the gift and blossoms into a lovely and giving human being. When she tries to give this gift to the man who, in fact, assaulted her, he refuses to accept it, dying a silent death of cancer behind bars.
I wish a better writer had sought to help the protagonists to tell this tale. There is epic power in their story, but Picking Cotton, for all its fine points, reads as though it were written for USA Today. I want to know more about these people. This book scarecly scratched the surface.
Thursday, May 7, 2009
The Search For Just The Right Prejudice
Justice David Souter’s abrupt announcement of his resignation from the United States Supreme Court has the bar in a collective psychosis. There are forces unleashed akin to those stirring in the breast of children of divorcing parents. What a pity.
Who should replace Souter? The legal interest groups have their favorite picks and candidates targeted for crucifixion. Lawyers are pushing and shoving to direct the tsunami this way and that.
All this hubbub carries the risk that we will forget what a judge is and is not. Indeed, it has us forgetting what law is and what is the role of lawyers in our society.
Truth be told, I am afraid of any lawyer with a vision of a good society tucked away like a sugar plum to be savored at recess. The law is not a philosopher’s stone. It possesses no Archimedean point capable of moving the world. What moves the law into action is conflict, and the law is simply our society’s manner and means of resolving conflict. Because certain sorts of conflicts are foreseeable, lawmakers enact statutes. Because some conflicts recur again and again, judges rely on settled doctrine. The broader context in which our institutions work and struggle are set forth in a constitution, which is endlessly interpreted on a case-by-case basis. All is, and remains, in flux.
The best lawyer is not the one with the broadest theory of what the law should do. No, the best lawyer is one with sufficient knowledge and experience to have a sense, a judgment, of how best to accomplish his client’s interests.
The legal interest groups forget this. They possess litmus tests, trawling the nation in search of clients trapped in struggles that provide the interest group with a forum. I pity the poor litigant who becomes raw meat for political lawyers.
When these interest groups turn their collective fantasies to the process of vetting judges, I shudder. Lawyers are mere handmaidens not brides.
Call me naive, a fool, a dreamer, but I have a more exalted view of the law and of judges. Law is the best means we have of resolving conflicts; a judge is the person entrusted with making judgments on what legal doctrines best address the disputed facts in a case. A good judge does this without prejudging matters on an ideological basis. It is the litigants’ role to frame the issues as they see fit. It is the judge’s job to rule, to make binding decisions with regard to what justice requires given the law and facts as the judge sees them. Because this is difficult work, we permit appeals, expanding the number of judges on each tribunal until we reach the highest court in the land.
A good judge is defined from beginning to end by the content of their character. Period. Attempts to identify and classify judges by their politics and commitments on this issue and that is mere ideological warfare. Thus, endless debates about originalism and activism are really canards. Originalism is merely another species of activism, this time in disguise: It is a theory of judging that requires a commitment to principle before a judge even hears a case or controversy.
I like the sound of President Obama’s commitment to an empathetic pragmatist as a jurist. Such a judge would care less about the intentions of the dead and the demands of the ideologues than about what the case or controversy at the bar requires as a matter of fact and law. Finding such a justice will be difficult given all the pushing and shoving going on by lawyers blinded by ideology.
I say invite neither ACLU nor the Federalist Society to the next confirmation hearings. We don’t elect federal judges for a reason. The campaign to commit the appointment process into an election by another means is saddening.
Reprinted courtesy of the Connecticut Law Tribune.
Who should replace Souter? The legal interest groups have their favorite picks and candidates targeted for crucifixion. Lawyers are pushing and shoving to direct the tsunami this way and that.
All this hubbub carries the risk that we will forget what a judge is and is not. Indeed, it has us forgetting what law is and what is the role of lawyers in our society.
Truth be told, I am afraid of any lawyer with a vision of a good society tucked away like a sugar plum to be savored at recess. The law is not a philosopher’s stone. It possesses no Archimedean point capable of moving the world. What moves the law into action is conflict, and the law is simply our society’s manner and means of resolving conflict. Because certain sorts of conflicts are foreseeable, lawmakers enact statutes. Because some conflicts recur again and again, judges rely on settled doctrine. The broader context in which our institutions work and struggle are set forth in a constitution, which is endlessly interpreted on a case-by-case basis. All is, and remains, in flux.
The best lawyer is not the one with the broadest theory of what the law should do. No, the best lawyer is one with sufficient knowledge and experience to have a sense, a judgment, of how best to accomplish his client’s interests.
The legal interest groups forget this. They possess litmus tests, trawling the nation in search of clients trapped in struggles that provide the interest group with a forum. I pity the poor litigant who becomes raw meat for political lawyers.
When these interest groups turn their collective fantasies to the process of vetting judges, I shudder. Lawyers are mere handmaidens not brides.
Call me naive, a fool, a dreamer, but I have a more exalted view of the law and of judges. Law is the best means we have of resolving conflicts; a judge is the person entrusted with making judgments on what legal doctrines best address the disputed facts in a case. A good judge does this without prejudging matters on an ideological basis. It is the litigants’ role to frame the issues as they see fit. It is the judge’s job to rule, to make binding decisions with regard to what justice requires given the law and facts as the judge sees them. Because this is difficult work, we permit appeals, expanding the number of judges on each tribunal until we reach the highest court in the land.
A good judge is defined from beginning to end by the content of their character. Period. Attempts to identify and classify judges by their politics and commitments on this issue and that is mere ideological warfare. Thus, endless debates about originalism and activism are really canards. Originalism is merely another species of activism, this time in disguise: It is a theory of judging that requires a commitment to principle before a judge even hears a case or controversy.
I like the sound of President Obama’s commitment to an empathetic pragmatist as a jurist. Such a judge would care less about the intentions of the dead and the demands of the ideologues than about what the case or controversy at the bar requires as a matter of fact and law. Finding such a justice will be difficult given all the pushing and shoving going on by lawyers blinded by ideology.
I say invite neither ACLU nor the Federalist Society to the next confirmation hearings. We don’t elect federal judges for a reason. The campaign to commit the appointment process into an election by another means is saddening.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, May 6, 2009
The Attack On Sonia Sotomayor
My preference for the next justice of the Supreme Court, the person to fill the slot of retiring Justice David Souter, is someone like William Bloss, of Bridgeport's Koskoff, Koskoff & Bieder, or perhaps a young version of New Haven's David Rosen. These are brilliant men who have earned their livelihood in courtrooms representing ordinary people in extraordinary situations.
But I know my preferences are unlikely to be fulfilled, at least this time around. The Obama administration is only months old. It takes time to make a new mold. My hunch is that this pick will come from among the ranks of academics and appellate court judges -- the familiar sources of high-fallutin' judges.
If that must be the case, the president can at least do us the service of ignoring the likes of the legal interest groups and their shills. We don't need a candidate sliced, diced and vetted by the likes of the Heritage Foundation or Jeffrey Rosen of The New Republic.
Rosen wrote a silly piece this past week about the Second Circuit's Sonia Sotomayor. She's not up the challenge, he writes. This based on the whispering comments of former clerks and judges. Rosen dissects, no doubt with the aid of some behind the scenes interest group, a footnote or two from a decision in Sotomayor's past to suggest that while she's plenty smart, she's not at the front ranks of the law's brain trust. (Hint: Do only originalists need apply?)
I do not know if Rosen has ever appeared in a courtroom to argue a case. I have appeared before Sotomayor a bunch of times. She is smart. She is incisive. She is, in temperament and demeanor, the Second Circuit's answer to Antonin Scalia. I would love to see the two of them at oral argument. The bad boy of the bench would have a counterweight.
The Heritage Foundation is also weighing in on the replacement of Suitor. It has more class than Rosen. Anonymous ad hominem attacks are replaced by seeming intellectual architecture. But even the Heritage Foundation sounds silly.
The Foundation is wary of a judge with empathy. Such a judge might be an activist. Originalists are good, you see; activists are bad. These tired old interpretive canons don't carry much weight. Originalism is a form of intellectual activism. It took a movement, the Federalist Society, to make it a creed.The extraordinary growth and dominance of this creed is less a function of its being right in any philosophic sense than it is a reflection of its serving the interests of those who find solace in constitutional necromancy. Originalism finds justification for the status quo in reverence for the past and must somehow find accord with our three-fifths of a president.
Much will be made in the weeks and months to come about judicial philosophy. What intellectual commitments has a potential justice made before he or she hears a particular case? What vision of the good? What social philosophy? What a priori commitments reflect the bias a jurist brings to bear on the raw data of a case? Pass my litmus test, the interest groups say, if you want to serve. Each interest group has a test and each, left or right, knows what the law requires.
I don't trust a one of them. All have sinned and fallen short of the true glory of the law.
The law is nothing more and nothing less than a set of legal doctrines born in conflict and tested by experience. The cases or controversies that animate any law suit summon the creativity of advocates. What factual issues are at the heart of the dispute? What legal doctrines best shed light on those issues? What precedent suggests that the law favors one side or another? There is no Platonic architecture lurking in the shadows. There never was and most likely never will be consensus on a vision of the good society among lawyers and judges. We are merely tools in others' struggles. The law is not ideology, and when it attempts to become ideology it is little more than farce. Hence the silly credal chatter of those who say originalism is liberty's best defense. When law professors spout "theory" and "philosophy" head for the doors. Few are supple enough to handle fire without getting burned.
President Obama is right to seek a justice with a pragmatic sense of empathy. Such a justice will have no commitments extending beyond an honest response to the law and facts presented in open court. Such a judge may not always do the ideologically correct thing in the eyes of one group or another. Such a judge may, indeed will, disappoint the expectations of litigants in one case or another. But such a judge can be trusted.
There is but one way to acquire empathy: experience. And this experience can come in two forms: work or life history. I am wary of Sonya Sotomayor's work history. A former prosecutor and then a judge for a long, long time. I would prefer a trial lawyer.
But she comes from the right side of the tracks. Her father died when she was a child. She has suffered with daibetes. She was raised by a single mother. She was reared in a housing project. She comes from the world most American's inhabit. I doubt she has forgotten the other America even as she has acquired power and presitige.
But I know my preferences are unlikely to be fulfilled, at least this time around. The Obama administration is only months old. It takes time to make a new mold. My hunch is that this pick will come from among the ranks of academics and appellate court judges -- the familiar sources of high-fallutin' judges.
If that must be the case, the president can at least do us the service of ignoring the likes of the legal interest groups and their shills. We don't need a candidate sliced, diced and vetted by the likes of the Heritage Foundation or Jeffrey Rosen of The New Republic.
Rosen wrote a silly piece this past week about the Second Circuit's Sonia Sotomayor. She's not up the challenge, he writes. This based on the whispering comments of former clerks and judges. Rosen dissects, no doubt with the aid of some behind the scenes interest group, a footnote or two from a decision in Sotomayor's past to suggest that while she's plenty smart, she's not at the front ranks of the law's brain trust. (Hint: Do only originalists need apply?)
I do not know if Rosen has ever appeared in a courtroom to argue a case. I have appeared before Sotomayor a bunch of times. She is smart. She is incisive. She is, in temperament and demeanor, the Second Circuit's answer to Antonin Scalia. I would love to see the two of them at oral argument. The bad boy of the bench would have a counterweight.
The Heritage Foundation is also weighing in on the replacement of Suitor. It has more class than Rosen. Anonymous ad hominem attacks are replaced by seeming intellectual architecture. But even the Heritage Foundation sounds silly.
The Foundation is wary of a judge with empathy. Such a judge might be an activist. Originalists are good, you see; activists are bad. These tired old interpretive canons don't carry much weight. Originalism is a form of intellectual activism. It took a movement, the Federalist Society, to make it a creed.The extraordinary growth and dominance of this creed is less a function of its being right in any philosophic sense than it is a reflection of its serving the interests of those who find solace in constitutional necromancy. Originalism finds justification for the status quo in reverence for the past and must somehow find accord with our three-fifths of a president.
Much will be made in the weeks and months to come about judicial philosophy. What intellectual commitments has a potential justice made before he or she hears a particular case? What vision of the good? What social philosophy? What a priori commitments reflect the bias a jurist brings to bear on the raw data of a case? Pass my litmus test, the interest groups say, if you want to serve. Each interest group has a test and each, left or right, knows what the law requires.
I don't trust a one of them. All have sinned and fallen short of the true glory of the law.
The law is nothing more and nothing less than a set of legal doctrines born in conflict and tested by experience. The cases or controversies that animate any law suit summon the creativity of advocates. What factual issues are at the heart of the dispute? What legal doctrines best shed light on those issues? What precedent suggests that the law favors one side or another? There is no Platonic architecture lurking in the shadows. There never was and most likely never will be consensus on a vision of the good society among lawyers and judges. We are merely tools in others' struggles. The law is not ideology, and when it attempts to become ideology it is little more than farce. Hence the silly credal chatter of those who say originalism is liberty's best defense. When law professors spout "theory" and "philosophy" head for the doors. Few are supple enough to handle fire without getting burned.
President Obama is right to seek a justice with a pragmatic sense of empathy. Such a justice will have no commitments extending beyond an honest response to the law and facts presented in open court. Such a judge may not always do the ideologically correct thing in the eyes of one group or another. Such a judge may, indeed will, disappoint the expectations of litigants in one case or another. But such a judge can be trusted.
There is but one way to acquire empathy: experience. And this experience can come in two forms: work or life history. I am wary of Sonya Sotomayor's work history. A former prosecutor and then a judge for a long, long time. I would prefer a trial lawyer.
But she comes from the right side of the tracks. Her father died when she was a child. She has suffered with daibetes. She was raised by a single mother. She was reared in a housing project. She comes from the world most American's inhabit. I doubt she has forgotten the other America even as she has acquired power and presitige.
Monday, May 4, 2009
Elena Kagan? Three Generations Of Institutional Competence Is Enough
President Barack Obama did the unthinkable when he won the presidency: he erased a color line that appeared indelible. He did so by mobilizing a base of support well outside the mainstream. But he did so with both feet planted firmly in the institutional breeding grounds of traditional elites. His Harvard law degree and time at the helm of the Harvard Law Review are eye poppers. He taught for a spell at the University of Chicago. He was a State Senator. These institutional roots may well strangle him as he prepares to name his first nominee to the United States Supreme Court.
Justice David Souter's abrupt resignation after 19 years of service on the Court has everyone wondering who the next justice will be. The legal interest groups are mobilizing their supporters. The press is floating names. I wonder whether the president will do for the courts what his election did for the executive branch: burst the bubble of privilege that makes institutional power the reward of those with just the right pedigree.
Consider the career of Elena Kagan, one of the nominees whose name is etched on the short list of virtually every court watcher. She is young, at least for a potential justice, at 48. She attended all the right schools: Princeton, Oxford, Harvard. She was supervising editor of the Harvard Law Review. She clerked for a U.S. Court of Appeals judge and for Justice Thurgood Marshall of the U.S. Supreme Court. She then worked for two or three years at Williams & Connolly in Washington, D.C., where, no doubt, she retired student debt and added luster to the firm's star-studded letterhead. She may even have met a client or two while there, although she's not talking about that.
In 1991 she went to the University of Chicago to teach law. She was tenured in 1995. From 1995 to 1999 she was one of President Bill Clinton's lawyers. Clinton nominated her for an appellate court seat in the D.C. Circuit in 1999, but that nomination died on the vine.
In 2003, Ms. Kagan was named the first female dean of the Harvard Law School. Her name was floated as a potential president of the University itself. In 2009, President Obama named her Solicitor General of the United States. She has yet to argue before the Supreme Court in her new role.
I am impressed. She has been in all the right places. She seems to be a high I.Q. version of Chance in Jerzy Kozinski's Being There. But, frankly, what has she done while she's been atop the status pyramid?
Kagan is no doubt brilliant. But that and a student loan merely gets you into Harvard or Yale or, gods be damned, Stanford. Work hard, schmooze, build a resume and good things will happen. Live a life without any quality other than the passion to get ahead and by the time you reach late middle age, anything can happen. But sleepwalking to the steps of the United States Supreme Court shows no passion for justice. Kagan is out of touch with lives lived in quiet desperation.
Every state bar knows the Kagan type. Check the web page of the institutional players and you will see list upon list of committee assignments. The hunt for a judgeship takes many a candidate through institutional mazes and cross-cutting relationships that take a marathoner's endurance. Some of the stars of Connecticut's bar have scores of committee assignments to call their own. Their web pages drip with a sort of Who's Who quality. Odd how these same web pages and resumes reflect no comment on cases they handled, or people's lives they've touched. Once again, being there is all that counts.
When I study the Kagan biography I am impressed and then, once the glitter rubs off, boredom sets it. She is the perfect candidate to serve as CEO of a marketing company called "Inside the Box." She can market what it takes to succeed if virtually every break in life goes your way. But this is simply marketing, although this time she's not selling Coca-Cola, she's selling herself. Let her be president of an Ivy League college. She is well suited to play overseer of a status plantation. But she is not material to serve as Justice of the Supreme Court: the blood of litigants runs red, not blue.
Being in the right place at the right time and knowing the right people is a talent few share. It also reflects a passion to calculate well and truly how to peak at just the right time. Eyes forever on one of the nation's top prizes, a life so lived has a soulless quality. Robert Musil's Man Without Qualities comes to mind.
Being there isn't enough. I want to know what a candidate for the Supreme Court has done along the way. What lives have you touched? Do you know from first-hand experience the law's power to exterminate hope or yield deliverance? Is the law merely a parlor game for the tenured clever, or is it a set of doctrines that breathes and takes shape at a moment of crisis?
President Obama, you inspired hope in ordinary Americans. You told folks that they mattered, and that their lives were the stuff of history. Millions heeded your call. And now, amid a time of crisis, they look to you to redeem the hope you offered. The mold you broke to become president should not be reassembled so that yet another sleepwalker can take a seat on the high court.
A life lived according to plan is no life at all. There are passions awhirl in the lives of most men and women. And bad fortune can teach lessons one cannot learn from the perches of power. The next justice should not come from the general's war room in life's great struggles. Choose a justice from those who labor in the law's trenches. Such a justice can teach what privilege and power do not. Harvard can take care of itself; we need a justice who has taken care or ordinary people. Have the audacity to offer hope, Mr. President.
Justice David Souter's abrupt resignation after 19 years of service on the Court has everyone wondering who the next justice will be. The legal interest groups are mobilizing their supporters. The press is floating names. I wonder whether the president will do for the courts what his election did for the executive branch: burst the bubble of privilege that makes institutional power the reward of those with just the right pedigree.
Consider the career of Elena Kagan, one of the nominees whose name is etched on the short list of virtually every court watcher. She is young, at least for a potential justice, at 48. She attended all the right schools: Princeton, Oxford, Harvard. She was supervising editor of the Harvard Law Review. She clerked for a U.S. Court of Appeals judge and for Justice Thurgood Marshall of the U.S. Supreme Court. She then worked for two or three years at Williams & Connolly in Washington, D.C., where, no doubt, she retired student debt and added luster to the firm's star-studded letterhead. She may even have met a client or two while there, although she's not talking about that.
In 1991 she went to the University of Chicago to teach law. She was tenured in 1995. From 1995 to 1999 she was one of President Bill Clinton's lawyers. Clinton nominated her for an appellate court seat in the D.C. Circuit in 1999, but that nomination died on the vine.
In 2003, Ms. Kagan was named the first female dean of the Harvard Law School. Her name was floated as a potential president of the University itself. In 2009, President Obama named her Solicitor General of the United States. She has yet to argue before the Supreme Court in her new role.
I am impressed. She has been in all the right places. She seems to be a high I.Q. version of Chance in Jerzy Kozinski's Being There. But, frankly, what has she done while she's been atop the status pyramid?
Kagan is no doubt brilliant. But that and a student loan merely gets you into Harvard or Yale or, gods be damned, Stanford. Work hard, schmooze, build a resume and good things will happen. Live a life without any quality other than the passion to get ahead and by the time you reach late middle age, anything can happen. But sleepwalking to the steps of the United States Supreme Court shows no passion for justice. Kagan is out of touch with lives lived in quiet desperation.
Every state bar knows the Kagan type. Check the web page of the institutional players and you will see list upon list of committee assignments. The hunt for a judgeship takes many a candidate through institutional mazes and cross-cutting relationships that take a marathoner's endurance. Some of the stars of Connecticut's bar have scores of committee assignments to call their own. Their web pages drip with a sort of Who's Who quality. Odd how these same web pages and resumes reflect no comment on cases they handled, or people's lives they've touched. Once again, being there is all that counts.
When I study the Kagan biography I am impressed and then, once the glitter rubs off, boredom sets it. She is the perfect candidate to serve as CEO of a marketing company called "Inside the Box." She can market what it takes to succeed if virtually every break in life goes your way. But this is simply marketing, although this time she's not selling Coca-Cola, she's selling herself. Let her be president of an Ivy League college. She is well suited to play overseer of a status plantation. But she is not material to serve as Justice of the Supreme Court: the blood of litigants runs red, not blue.
Being in the right place at the right time and knowing the right people is a talent few share. It also reflects a passion to calculate well and truly how to peak at just the right time. Eyes forever on one of the nation's top prizes, a life so lived has a soulless quality. Robert Musil's Man Without Qualities comes to mind.
Being there isn't enough. I want to know what a candidate for the Supreme Court has done along the way. What lives have you touched? Do you know from first-hand experience the law's power to exterminate hope or yield deliverance? Is the law merely a parlor game for the tenured clever, or is it a set of doctrines that breathes and takes shape at a moment of crisis?
President Obama, you inspired hope in ordinary Americans. You told folks that they mattered, and that their lives were the stuff of history. Millions heeded your call. And now, amid a time of crisis, they look to you to redeem the hope you offered. The mold you broke to become president should not be reassembled so that yet another sleepwalker can take a seat on the high court.
A life lived according to plan is no life at all. There are passions awhirl in the lives of most men and women. And bad fortune can teach lessons one cannot learn from the perches of power. The next justice should not come from the general's war room in life's great struggles. Choose a justice from those who labor in the law's trenches. Such a justice can teach what privilege and power do not. Harvard can take care of itself; we need a justice who has taken care or ordinary people. Have the audacity to offer hope, Mr. President.
Sunday, May 3, 2009
What's Wrong With The Supreme Court Bar?
Not long ago, I enjoyed dinner with none other than Charles Fried, a former solicitor general of the United States, and a long-time Harvard law professor. (He quipped that he had thrice been voted tenure, having moved in and out of the academy in the course of his career.)
Fried is everything I am not -- he is witty, urbane, self-assured. It was hard not to feel envious of the man. While I cannot say he was born to the manor, he inhabits a rarefied world. My world is plenty more visceral and a whole lot less prestigious.
The two of us had been invited to participate in a discussion on appellate advocacy by Sonia Sotomayor of the Second Circuit. She teaches a seminar at the Columbia law school.
I get invited to do things like this from time to time, and it always surprises me. I figure I am usually the entertainment section of a program. Let the serious speakers trot out their doctrinal statements and learned comments. Then I waltz in for comic relief. If Fried's and Sotomayor's presence, I felt that I was there perhaps to serve the refreshments. As the evening began, I was intimidated; the weight of the chip I carry on my shoulder oppressed. It was hard to shake off.
I had dinner with Fried and Sotomayor later that night at a quiet spot in Manhattan. It will remain memorable for as long as I practice law. There was a "pinch me" quality to the entire experience that remains with me still. Fried represented the United States before the Supreme Court; Sotomayor may well be on her way there as a justice. Me, I was due in court the next morning on a child sex case. It seemed dissonant.
One comment Fried made in the course of the evening has stuck with me. We were discussing the sorts of pressures a lawyer feels in a high-stakes case. I said something about my heart's having been broken in one case or another. Fried did not miss a beat. "My heart has never been broken by a client," he said.
I was surprised by that remark. On reflection, I feel bad for Fried. The law is about human drama and private turning points made public. Heartbreak really is part of the turf. I believe the professor said he'd never stepped foot in a courtroom until the age of 50.
Fried's argued some 26 or 27 cases before the Supreme Court. He argued Daubert, a case that remade the law on the use of expert testimony in our courts. And he has written wise and wonderful books on the law.
But somehow I came away saddened. All the brilliance in the man but yet no blood left on the floor of his local court. I wonder whether that same sort of cerebral detachment typifies the Supreme Court bar, and the justices themselves. I suspect it is so. So much the worse for the law.
Fried is everything I am not -- he is witty, urbane, self-assured. It was hard not to feel envious of the man. While I cannot say he was born to the manor, he inhabits a rarefied world. My world is plenty more visceral and a whole lot less prestigious.
The two of us had been invited to participate in a discussion on appellate advocacy by Sonia Sotomayor of the Second Circuit. She teaches a seminar at the Columbia law school.
I get invited to do things like this from time to time, and it always surprises me. I figure I am usually the entertainment section of a program. Let the serious speakers trot out their doctrinal statements and learned comments. Then I waltz in for comic relief. If Fried's and Sotomayor's presence, I felt that I was there perhaps to serve the refreshments. As the evening began, I was intimidated; the weight of the chip I carry on my shoulder oppressed. It was hard to shake off.
I had dinner with Fried and Sotomayor later that night at a quiet spot in Manhattan. It will remain memorable for as long as I practice law. There was a "pinch me" quality to the entire experience that remains with me still. Fried represented the United States before the Supreme Court; Sotomayor may well be on her way there as a justice. Me, I was due in court the next morning on a child sex case. It seemed dissonant.
One comment Fried made in the course of the evening has stuck with me. We were discussing the sorts of pressures a lawyer feels in a high-stakes case. I said something about my heart's having been broken in one case or another. Fried did not miss a beat. "My heart has never been broken by a client," he said.
I was surprised by that remark. On reflection, I feel bad for Fried. The law is about human drama and private turning points made public. Heartbreak really is part of the turf. I believe the professor said he'd never stepped foot in a courtroom until the age of 50.
Fried's argued some 26 or 27 cases before the Supreme Court. He argued Daubert, a case that remade the law on the use of expert testimony in our courts. And he has written wise and wonderful books on the law.
But somehow I came away saddened. All the brilliance in the man but yet no blood left on the floor of his local court. I wonder whether that same sort of cerebral detachment typifies the Supreme Court bar, and the justices themselves. I suspect it is so. So much the worse for the law.
Saturday, May 2, 2009
Why We Need A Trial Lawyer On The Supreme Court
Let's see just how bold President Barack Obama will be in his first appointment to the United States Supreme Court. He wants a lawyer with real world experience. Just how real is the president prepared to get?
Adam Liptak's piece in this morning's New York Times is revealing for the bias it brings to the discussion. The current court is composed entirely of former federal appeals court judges. All but one got their professional tickets punched at two of the nation's premiere status factories: Harvard and Yale. Three of the current justices have never even worked in private practices. As lawyers go, the current justices are glittering gems. It is an elite group, long since detached from the world the vast majority of folks inhabit.
But then Liptak betrays his bias. When he looks for someone with real world experience on the Court he turns to David Souter. Why Souter was a trial judge and an attorney general of the State of New Hampshire. "No other justice has either sort of experience," he writes.
Newsflash to Liptak: Being the top law enforcement officer of a state or a trial judge isn't exaclty the real world. The mass of men, to paraphrase an author Souter loves, lead lives of quiet desparation far from the seclusion of a trial court's chambers or the apex of a state-court law enforcement agency. Only from the burnished brass and dark oak corridors of power does a trial judge or an attorney general look like the inhabitant of the real world.
When President Obama opposed John Roberts' appointment to the Supreme Court, he said "adherence to precedent and rules of construction will only get you throught the 25th mile of the marathan." What concerns the president is the view during the last mile, a view that takes account of "the broader perspective on how the world works."
Mr. President, those who walk the corridors of power don't run marathons. A federal appellate court judge sprints. A state law maker runs hurdles. A trial judge is a middle distance man. And former governors and chief executives of government agencies are, at best, specialists in the 10,000 meter run. The men and women who run the law's, and life's marathons, are trial lawyers
A trial lawyer knows about raw human need and the law's rough edges. It is a trial lawyer's job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law's reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immuity.
And be careful, Mr. President. When I refer to a trial lawyer, I am not asking you to troll the big leagues. Don't call David Boies or the other so-called stars of the bar who represent big clients with deep pockets. These lawyers are at best half-marathoners. They don't know what it is like to stand in the well of a court pleading for justice long after their client has run out of money to pay them.
I am not a scholar of the Supreme Court, so I do not know the answer to this question: When is the last time a lawyer who made his living from fees earned representing ordinary working people sat on the Supreme Court?
The bar's elite will shudder at the thought of an uncouth lawyer sitting atop justice's pyramid. But the shuddering really reflects the the conceit of those who view the law as little more than a pyramid scheme. The law is not science. There is no Platonic elite governing eternal truths exposed briefly to view in qoutidian conflicts. The law is simple: It is civilized society's way of brokering peace in the face of conflicts rubbed raw by human need. A man dies, and another is accused of the killing; a mother cannot afford the rent for her home, and her landlord presses her; a child's parents do not provide the care a state official thinks necessary and now hearts are torn assunder. This is the world most Americans inhabit. We do not command corporations, run large agencies, stride the corridors of power as lawmakers or judges. When we awaken in the morning, we hope, and the law is what we turn to when the hopes of conflicting parties threaten to turn into despair.
Mr. President, you broke a mold when you were elected, or so it seemed. Hope flowed from the bosoms of millions who thought you would provoke change. Don't fall into the mold of offering the same old type of judge. Turn your back on Ivy walls. Tell the law's interest groups and their constipated doctrines of what the law is and should be to retire to their studies to inhale the choking smell of the wick. Leave the politicians and judges alone to enjoy their power. Pick a lawyer who is acquainted with sorrows and knows the grief of the real people in need who elected you.
The Times reports that Mr. Obama wants a judge who "understands that justice isn't about some abstract legal theory or footnote in a casebook.... It is also about how our laws affect the daily realities of people's lives." Hence the first question of any potential nominee: "When is the last time you appeared in a courtroom to represent a person making less than the median income of the United States?" No one on the short list of names being tossed about can answer that question with anything other than silence.
Adam Liptak's piece in this morning's New York Times is revealing for the bias it brings to the discussion. The current court is composed entirely of former federal appeals court judges. All but one got their professional tickets punched at two of the nation's premiere status factories: Harvard and Yale. Three of the current justices have never even worked in private practices. As lawyers go, the current justices are glittering gems. It is an elite group, long since detached from the world the vast majority of folks inhabit.
But then Liptak betrays his bias. When he looks for someone with real world experience on the Court he turns to David Souter. Why Souter was a trial judge and an attorney general of the State of New Hampshire. "No other justice has either sort of experience," he writes.
Newsflash to Liptak: Being the top law enforcement officer of a state or a trial judge isn't exaclty the real world. The mass of men, to paraphrase an author Souter loves, lead lives of quiet desparation far from the seclusion of a trial court's chambers or the apex of a state-court law enforcement agency. Only from the burnished brass and dark oak corridors of power does a trial judge or an attorney general look like the inhabitant of the real world.
When President Obama opposed John Roberts' appointment to the Supreme Court, he said "adherence to precedent and rules of construction will only get you throught the 25th mile of the marathan." What concerns the president is the view during the last mile, a view that takes account of "the broader perspective on how the world works."
Mr. President, those who walk the corridors of power don't run marathons. A federal appellate court judge sprints. A state law maker runs hurdles. A trial judge is a middle distance man. And former governors and chief executives of government agencies are, at best, specialists in the 10,000 meter run. The men and women who run the law's, and life's marathons, are trial lawyers
A trial lawyer knows about raw human need and the law's rough edges. It is a trial lawyer's job to find the intersection of terror, fear and tears with the high doctrine and principle of the law. Not one member of the current court has ever sat with a client and his family during jury deliberations to discuss what will become of a family should the client be sent to prison. Not one of these legal scholars have ever told a person that the law's reach will not embrace the harm they have endured. I cannot fathom Scalia counseling a client about sovereign immuity.
And be careful, Mr. President. When I refer to a trial lawyer, I am not asking you to troll the big leagues. Don't call David Boies or the other so-called stars of the bar who represent big clients with deep pockets. These lawyers are at best half-marathoners. They don't know what it is like to stand in the well of a court pleading for justice long after their client has run out of money to pay them.
I am not a scholar of the Supreme Court, so I do not know the answer to this question: When is the last time a lawyer who made his living from fees earned representing ordinary working people sat on the Supreme Court?
The bar's elite will shudder at the thought of an uncouth lawyer sitting atop justice's pyramid. But the shuddering really reflects the the conceit of those who view the law as little more than a pyramid scheme. The law is not science. There is no Platonic elite governing eternal truths exposed briefly to view in qoutidian conflicts. The law is simple: It is civilized society's way of brokering peace in the face of conflicts rubbed raw by human need. A man dies, and another is accused of the killing; a mother cannot afford the rent for her home, and her landlord presses her; a child's parents do not provide the care a state official thinks necessary and now hearts are torn assunder. This is the world most Americans inhabit. We do not command corporations, run large agencies, stride the corridors of power as lawmakers or judges. When we awaken in the morning, we hope, and the law is what we turn to when the hopes of conflicting parties threaten to turn into despair.
Mr. President, you broke a mold when you were elected, or so it seemed. Hope flowed from the bosoms of millions who thought you would provoke change. Don't fall into the mold of offering the same old type of judge. Turn your back on Ivy walls. Tell the law's interest groups and their constipated doctrines of what the law is and should be to retire to their studies to inhale the choking smell of the wick. Leave the politicians and judges alone to enjoy their power. Pick a lawyer who is acquainted with sorrows and knows the grief of the real people in need who elected you.
The Times reports that Mr. Obama wants a judge who "understands that justice isn't about some abstract legal theory or footnote in a casebook.... It is also about how our laws affect the daily realities of people's lives." Hence the first question of any potential nominee: "When is the last time you appeared in a courtroom to represent a person making less than the median income of the United States?" No one on the short list of names being tossed about can answer that question with anything other than silence.
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